The Farber Case

New York Times reporter M.A. Farber does not face any further time in jail for his refusal to give his notes to a New Jersey judge. Bergen County Judge Theodore Trautwein suspended Farber's six-month jail sentence for criminal contempt regardless of any action on Farber's appeal to the U.S. Supreme Court, which is pending. The Washington Post reported Farber's situation incorrectly Oct.

THE ACQUITTAL of Dr. Mario Jascalevich on three murder charges ends only one aspect of what has become known as the Farber case. Reporter Myron Farber has been released after 40 days in jail, and The New York Times is no longer being fined $5,000 a day. But Mr. Farber faces another six months in jail for his refusal to hand over the notes he made during his investigation of those deaths. And the effort of other lawyers and judges to use this case as a precedent for similar orders against other writers has just begun. In Brooklyn, a trial judge recently rejected a sweeping subpoena like the one Mr. Farber refused to obey but is preparing to enforce a narrower one directed at a free-lance writer.

Whether Mr. Farber will have to serve that additional jail term depends upon how the Supreme Court decides his appeal. What kind of precedent the Farber case will become depends on what the court says. But regardless of how it eventually rules, investigative journalism has been damaged by the way in which lower courts have already handled this case.

The Times estimates that it has spent about $1 million in legal fees and fines in its defense of the idea that a newspaper reporter should not be required to disclose confidential notes and sources merely because a defendant's lawyers claim something in those notes might help him in his defense. The size of that bill, not to mention the days Mr. Farber has spent in jail, is enough to discourage most newspapers from emulating The Times. Even if Mr. Farber and The Times win in the Supreme Court, the reckless way in which the new Jersey courts chose to treat this serious issue is likely to make less wealthy newspapers wonder if the victory is worth the cost.

One could argue that the outcome of the murder trial suggests that Mr. Farber was right all along in claiming that nothing in his notes was vital to Dr. Jascalevich's defense. The doctor, after all, was acquitted, without the benefit of whatever his lawyers thought was in Mr. Farber's notes.

What has troubled us most about this case from the beginning is that the New Jersey courts consistently refused to require Dr. Jascalevich's lawyers to make any showing at all of the relevance to his defense of the notes they sought. They wanted - and persuaded the judge to try to look at - almost everything Mr. Farber had, relevant or not. The case against Mr. Farber would have been quite different, and might have had a quite different outcome, it the lawyers had been seeking only particular parts of his notes.

Almost as troubling to us has been the inability of the New Jersey judges to understand that "disclosure" does not mean the same thing to reporters as it does to them. The judges said Mr. Farber would not be disclosing his notes by letting a judge read them. To a reporter, the pledge of confidentiality he has given is broken when notes are read by anyone, even a judge. The importance of that distinction would have been obvious if this case had involved political corruption in a community in which the judge was part of the political machine instead of involving a set of deaths that had gone unexplained for a decade.

If the Supreme Court decides to hear Mr. Farber's appeal - and to face up to these and other questions instead of brushing them aside as the New Jersey courts have - it could undo some of the damage this case had done. In the absence of any clarifying judgment by the Supreme Court, $1 million in fines and fees for a newspaper and 40 days in jail (with the threat of another six months) for a reporter are bound to have a lasting - and chilling - effect on news sources and on investigative reporting as well.